Standing Committee D

[Mr. Joe Benton in the Chair]

Railways and Transport Safety Bill

Don Foster: On a point of order, Mr. Benton. I welcome you to the Chair. We are all looking forward to serving on Committee under your chairmanship. However, confusion has arisen because some members of the Committee believe that I attributed to the hon. Member for Enfield, North (Joan Ryan) the phrase ''a police strippogram'', and that she had said it from a sedentary position. That was my interpretation of what she said. I should hate the Official Report to imply that she had said such words.Clause 100 Convention on International Carriage by Rail

Clause 100 - Convention on International Carriage by Rail

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: Good afternoon, Mr. Benton. I warmly welcome you to what is becoming a jolly Committee.
 Several years ago, the subject of the clause was dangerously familiar to me but, owing to the lapse of time, it is not so now. I am sure that the Minister will deal most eloquently with the background to the clause but I have several points to make about its wide-ranging powers. It is a matter of debate whether the Commission has exclusive competence in such issues. It is always of concern to the official Opposition when competence is classed in an exclusive sense, whether in rail transport or others matters. 
 The United Kingdom is a signatory to the protocol of Vilnius, which was agreed in 1999. It modifies the convention on international carriage by rail, which is known by its French acronym COTIF; I shall refrain from referring to the French version this afternoon. That was agreed in 1980. 
 The protocol of Vilnius will need to be ratified by the United Kingdom—and presumably other member states—before it applies to the United Kingdom. We must therefore have the necessary legislation in place to give effect to the new convention when it comes into force. I am sure that the Committee agrees with me and prefers the term ''convention'' to ''COTIF'', because it will make it easier to read our proceedings in the Official Report. The Bill makes the necessary provision for giving effect to the convention. 
 Like the existing 1980 version, the new convention provides a uniform system of laws that will apply to the carriage of passengers, luggage and freight in international through traffic by rail, and will facilitate the development of that traffic. I understand that there are 41 signatories to the 1980 convention, and that a uniform system of law has been in operation for many 
 years. The first international convention concerning the carriage of goods was signed in 1893. 
 Although the United Kingdom will ratify the protocol by means of the royal prerogative, when the new convention comes into force under international law, it will not have force of law in the UK until the relevant provisions of the Bill are brought into force and the corresponding domestic regulations are made. [Interruption.] We welcome back the Minister of State. I hope that he is making a speedy recovery from his illness and will be well for the remainder of Committee stage. I had the same thing and did not take any time off; I find the Bill so interesting that I would have been disappointed if I could not have contributed to each clause. 
 What will be the status of the convention before the United Kingdom ratifies it? Also, what will be the status of the several other members states that have not ratified the convention? Does that mean that the 1980 convention will remain in place until the new convention is introduced? I have a genuine interest in international law that dates back to my university days. Modesty—that is not the word, as it was a number of years ago—prevents me from saying how long ago that was. 
 The International Transport Conventions Act 1983, which gives effect to the 1980 convention, is not sufficiently flexible to deal with the new convention. The Bill, combined with the domestic implementing regulations, is designed to provide the flexibility necessary to give effect to the new convention. We hope that the Minister will confirm that not too much leeway will be given to the Secretary of State to make regulations under subsection (1). We hope that that power will be limited to ratifying the provisions of the Bill. 
 For many Committee members, alarm bells will ring when I say that the new convention brings within its scope certain matters in the competence of the European Community. It is incumbent on the Minister to say whether that is an exclusive competence, or whether it will be shared between member states and the Commission in respect of the implementation of the part of the convention under subsection (1).

Richard Bacon: The matter of whether the competence is exclusive or shared will be of academic interest, as under draft articles 1 to 16 of the new European constitution, which have been published, even the shared competences only allow member states to act if the European Union decides that it does not wish to. If articles 1 to 16 went through as drafted, it would mean that we could all pack up and go home. Although that might be a sensible idea in the case of certain legislation, it would generally be a retrograde step for Parliament.

Anne McIntosh: I think that the Committee would agree with my hon. Friend. We prefer laws to be made by this institution rather than by another one, but I am sure that my hon. Friend agrees that, if there is an argument, international transport provides a good example of an area where competency passing to the European Union works in the interests of our industry, of those employed in it and of those
 seeking to transport passengers and goods internationally by rail. That industry provides an argument that might make it marginally more favourable than we would otherwise think it to be. My hon. Friend made that point well.
 In the explanatory notes, there is some discussion about appendices that have apparently been agreed under the convention, and in particular the European Union directives on interoperability of the European rail network. We wish to be told how those appendices will fit in with existing UK law on railways and the new convention. We would be particularly interested to hear how the channel tunnel will fit into the convention in that regard. The services through the channel tunnel are a remarkable example of interoperability of railway infrastructure. I should remind the Committee yet again that I have an interest in Eurotunnel, which is one of the providers of those services, as is Eurostar. 
 I understand that until the new convention, and in particular article 38, is enforced, there is no mechanism for the European Community—or the European Union as we now call it—to join. I think that the Minister will confirm that until that has happened the EU will have no competence and will not be in a position to join the convention on international rail transport. 
 I am sure that the Minister will wish to state to the Committee that the Government consider that the provisions of this part of part 6 are compatible with the European convention on human rights.

Joe Benton: Order. The background noise is getting too high; too many people are speaking at the same time. The hon. Lady deserves to be heard.

Anne McIntosh: I am grateful to you, Mr. Benton.
 We have a particular regard for human rights. We are deeply concerned that, by writing the European convention on human rights into UK law, the Human Rights Act 1998 will have a devastating effect on how this part of the Bill will be implemented and interpreted. 
 We were told that one effect of the convention provisions of this Bill and the regulations that clause 100(1) gives the Secretary of State the power to make will be to ensure that certain dangerous goods may not be carried by rail. Does that mean that under the present convention certain dangerous goods may be carried by rail on an international journey and that that will no longer be the case because of the convention on human rights? I am reminded of the devastating accident in, I think, the Mont Blanc tunnel in Switzerland. Chemicals exploded and there were several fatalities and serious injuries. There may be some cunning reasons why such dangerous goods should be carried in future, but we seek guidance from the Minister on that. 
 If the consequences are that the dangerous goods may not be carried by rail, how will the dangerous goods be carried? Will dangerous goods be allowed to be carried by rail through the channel tunnel, or will 
 that be deemed carriage by rail under the terms of the convention? Will such goods be allowed to be transported by sea? That could cause enormous distress to my right hon. and hon. Friends who represent coastal and shipping constituencies. Indeed, the Under-Secretary of State could fall into that category—Plymouth is a large port. I am always mindful of the interests of the Under-Secretary of State and I wish to be helpful in this regard. 
 If dangerous goods will not be allowed to be transported by rail under the convention and, if they are not allowed to be transported by sea, I cannot imagine for one moment that they will be allowed to be transported by air. Does the provision refer to some, but not all, chemicals? How will oil, gas and other hazardous products that are produced in the UK be exported in future? 
 The explanatory notes tell us that dangerous goods will not be allowed to be transported by rail under the new convention, once that is ratified in the UK and applies throughout the EU. The notes say: 
''It is considered that where this interferes with a person's economic interests in running a business''—

Richard Bacon: Will my hon. Friend make it clear which convention she is talking about?

Anne McIntosh: The new convention. I am seeking clarification from either the Minister of State or the Under-Secretary. My understanding is that the current convention allows for dangerous goods to be transported. Is this provision a new development? Are the Government saying that dangerous goods can, or cannot, be carried by international rail?

Richard Bacon: I am trying to establish which convention we are referring to—never mind the new one. There are various conventions: the convention on the future of Europe, to which she is not referring, the charter of fundamental rights and the European convention on human rights.

Anne McIntosh: I was trying desperately not to use the term COTIF, but for my hon. Friend's benefit I shall now talk about that, instead of the convention. The convention on international carriage by rail, known as COTIF, forms the basis of clause 100, which deals with the new provisions. I understand that under COTIF there is a potential ban on the carriage of certain goods by rail, that those may be considered to be in contravention, or interfering with,
''a person's economic interests in running a business (protected by Article 1 of the First Protocol)''—
 of the European convention on human rights—and that 
''this prohibition may be justified on general public interest grounds.''
 If that is right, I would like to hear about it from the Minister responsible. 
 A producer of hazardous goods that are deemed too dangerous to be carried by rail under COTIF may be able to oppose the prohibition on transporting his goods by rail on the grounds that, under article 1 of the first protocol, his freedom and right to develop and enjoy his economic interests have been compromised. 
 The prohibition on the carrying of certain dangerous goods by rail would also go towards ensuring that the UK upheld article 8, which deals with the right to respect a person's home. That right might otherwise be affected by environmental blight or pollution caused by the carriage of those goods. If chemicals or hazardous products were carried by rail and there were an accident and a spillage, people's enjoyment of their private property or dwelling could be damaged. Such people would, therefore, have a different interest. 
 Will the new convention, COTIF, which is the basis for the provisions in clause 100, mean that certain dangerous goods may no longer be carried by rail? If that is the case, surely they are too dangerous to be carried by ship or plane, so how will such goods reach their destination? How will firms that need to export such goods be able carry out their business? The most serious charge to be made against the Government is that the Bill may be defective in its current form. 
 We are told that regulations made under subsection (5) must be 
''laid before and approved by resolution of each House of Parliament.''
 I hope that the Minister will confirm that that will be done under the affirmative resolution procedure. 
 The convention raises serious matters, especially about the time lapse between the old convention and the new one. Until the Bill becomes part of UK law, can the dangerous goods prohibited by the clause still be carried by rail and through the channel tunnel?

Kelvin Hopkins: Thank you, Mr. Benton. It is a great pleasure to be sitting under your chairmanship this afternoon—unexpected, but a pleasure nevertheless.
 I have one or two concerns to raise, especially about the aspect of the convention that refers to the separation of infrastructure management from train operations. I am pleased that some flexibility has apparently been built into adopting the convention. I hope that we will not be required to perpetuate or increase the degree of vertical separation that has occurred in the disintegration of our rail industry between rail and wheel. 
 The problems that have arisen since privatisation have largely been caused by the vertical disintegration between contractors working on track, track management and train operators.

Anne McIntosh: Is the hon. Gentleman saying that he disagrees with a previous leader of his party, who is now a senior commissioner for the UK in Brussels? He set out what the hon. Gentleman describes as disintegration. It became the basis of the European directive that preceded privatisation in the UK. Does he disagree with his colleague?

Kelvin Hopkins: Possibly, but I do not want to personalise the issue. I am putting forward a rational case for retaining the integration of train operations with infrastructure management. In the majority of rail systems in Europe, that is still largely the case—TGV, for example. I recognise that there is a drive towards separating train operations from
 infrastructure management to market and privatise railways. It is fair to say that Britain has been a laboratory experiment for some of the theories that underlie the convention. That experiment has failed dramatically. One would expect continental railway operators and Governments to say, ''It hasn't worked in Britain, so we don't want it here''.
 Private discussions suggest that the Government recognise that the separation has not worked and has been damaging. We should be seeking ways of vertically reintegrating train operations and infrastructure management.

Don Foster: Does the hon. Gentleman agree, as a first step at least, it would make sense to allow those train-operating companies that wish to, to take over responsibility for the maintenance of the track on which their trains run?

Kelvin Hopkins: If that were to be done, I would prefer it to be done in the public sector. As we are at least at a staging post towards full public ownership, I think that the way forward would be for franchises to be handed to Network Rail, rather than for rail track management to be handed to train operators. An experiment on that basis is possibly going to take place in Britain: a test for finding a way forward and a way out of our difficulties.
 I will give one example of the sort of thing that happens. Because train operators run trains on track that they do not own, any damage that the trains cause to the track is not their concern, especially if they are profit driven. They are not going to be concerned about the damage that they cause to the track. That has to be dealt with by somebody else—it is not their problem. 
 I travel by train every day, and all too frequently I hear wheel flats. I am sure everyone knows that those are caused when the wheel skids on the track and makes a flat metal edge on one wheel, causing a clattering noise. That damages the track over time. Track can last a long time if it is looked after, but if it is battered daily by wheel flats it lasts less time. They cause cracked and broken rails in time. They also cause damage to the train, but the primary damage is to the track. 
 If there are two separate operators—both of whom have a central financial basis, either for profit or on a non-profit basis—the track infrastructure operator will not be concerned with the train, and the train operator will not be concerned with the track. It is even more ridiculous in Britain because the lathes that are used to regrind the wheels are owned by the owners of the infrastructure, Network Rail. Train operators have to hire the lathes, take their train out of service, which is a cost, and then pay Network Rail to have their wheels reground, which is another cost. There is a great disincentive to do that. 
 Another factor is that a lot of the units are owned by leasing companies, not by the operating companies, so they have even less incentive to do anything about wheel flats. That causes annoyance and discomfort for passengers such as me who travel every day at the standard operating speed of 90 mph. They hear wheels making a lot of noise and that causes concern, 
 especially for people who do not have an appreciation of engineering, or of the kind of damage that could be done. 
 The approach of separating infrastructure from train operations is driven by dogma. The Government are re-thinking their approach, and I am pleased about that. Private suggestions suggest that the Government are aware of the problem, that they will not be going any further down that route, and may reverse it. I hope that that will be the case. 
 Passenger representative organisations recently suggested at a meeting of the all-party railways group that they should at least test transferring one train-operating franchise to Network rail as a comparator to see what happens and how it works. I hope that that will happen very soon.

John Randall: I was just wondering what the convention on international carriage by rail has to say on those matters.

Kelvin Hopkins: The explanatory notes have been very useful. They refer to
''increasing separation of infrastructure management from train operators.''
 I have a note from one of the trade unions drawing attention to that matter—a trade union with which I have close relations and strongly support. I am not in any way formally related to them; I just agree with its view. Its members drive the trains, are concerned about the problem and see it daily. We should take note of what they say.

Richard Bacon: I referred a moment ago to draft articles 1 to 16 of the new European constitution. If the draft goes through, does the hon. Gentleman agree that there may come a time when it will not matter whether he agrees with his trade union friends or not?

Kelvin Hopkins: I do not think so. Governments and people will all be sensible in the end. We need railways and railways will continue. We have a plan for the future and in spite of the difficulties that have arisen owing to privatisation, we will get through and will have a good railway system in time. It is right to listen to the advice of those who work in railways, as well as passenger representatives and Ministers.
 I do not want to say much more but the important point should be made. The convention suggests that not only Britain but the European Union will move further down a route in the wrong direction—if I may use a railway metaphor. We should keep the integration of train operations and train infrastructure management for the foreseeable future.

John Spellar: The convention does not require the opening up of rail markets or the separation of infrastructure management—I think that that is why my hon. Friend used the word ''reflects''. It merely provides for a clear and rational assignment of rights and obligations given that such developments have occurred.
 The clause effectively replaces the International Transport Conventions Act 1983, which was passed not by a Labour Government or even a Major Government, but by a Thatcher Government. The international rail convention covers some 41 countries. Those are not only EU and European countries because the convention covers three north African countries. It is part of a long-standing ongoing process of international work on the rail industry, which is done for understandable and sensible reasons. 
 A question was asked about the status of the convention before it is ratified by other member states. The 1999 convention text will not come into force until two thirds of the signatory states have ratified it, and the 1980 convention remains in force until then. The EU already has competence on elements of COTIF but it cannot exercise that competence until the new text is in force. In the meantime, EU member states act on its behalf in the areas in which the EU is competent. 
 A question was asked about shared competence. That is not the issue here; it would happen if the UK and the EU could act in the same area. Exclusive competence exists if the UK may act in some areas of COTIF and the EU acts in others. 
 Regulations made under the clause and the associated schedule would be limited to matters relating to the ratification of the convention. I hope that I can reassure the hon. Member for Vale of York (Miss McIntosh) that that would be done by affirmative resolution. 
 The hon. Lady properly asked about the position of the channel tunnel under the convention. The channel tunnel falls within the scope of EU interoperability provisions—directive 96/48/EC—and COTIF generally. 
 I understand that the new convention makes no changes to the dangerous goods that may be carried by rail. Those restrictions are covered by the 1980 convention. It is not affected by the European convention on human rights. Dangerous goods rules recognise that member states have the right to apply specific rules in certain circumstances, and that would include setting rules for a structure with the length of the channel tunnel. I have a very extensive list of the goods that it is prohibited outright to carry by rail—it would almost be a Tom Lehrer moment if I read them all out. The list does not deal exclusively with goods, but often describes the packaging that is required for them. Exports can be accommodated where compounds have to be carried separately, and final assembly can therefore take place only subsequently. Several of the goods are asphyxiants, corrosive or explosive, and the definitions have been covered in previous regulation. 
 We have had the international rail convention for a considerable time, and it is, quite properly, being updated. The new text will come into force in late 2004, and we will then be able to incorporate it. We do not believe that the current Act is sufficiently flexible to deal with the new COTIF. 
 Question put and agreed to. 
 Clause 100 ordered to stand part of the Bill.

Schedule 6 - Convention on International Carriage by Rail

Anne McIntosh: I beg to move amendment No. 52, in
schedule 6, page 65, leave out lines 12 to 17.
 I must limit my remarks purely to the amendment, so that we can discuss the schedule in the stand part debate. We want to delete paragraphs 2(d) to (g) because it would be inappropriate for regulations to 
''amend an enactment . . . apply, disapply or modify the effect of an enactment . . . confer jurisdiction on a court''
 or 
''confer a function (which may include a discretionary function) on the Secretary of State or a person appointed in accordance with the regulations''. 
For several reasons, the changes set out in paragraphs 2(d) to (g) would best be achieved through primary legislation. 
 If the Government sought to amend an enactment—this Bill and many others before the House amend previous legislation—it would be right and proper for this House and the other place to have an opportunity to debate and amend the proposals. For the same reason, it would be only right and proper for the Government to 
''apply, disapply or modify the effect of an enactment'',
 through primary legislation. It would be inappropriate for them to do so through secondary legislation—regulations, orders or other statutory instruments. 
 Equally, it would be more appropriate to confer jurisdiction on a court through primary legislation; it would be inappropriate and improper to do so by means of regulation, order or other statutory instruments. Similarly, the Secretary of State, or a person appointed by him under the regulations to act on his behalf, may confer a discretionary or a compulsory function. Again, that would be a sufficiently important matter to require primary legislation to be submitted in the usual way to the House. 
 I am taking advice from many senior right hon. and hon. Friends who have been in the House for a considerable time and for substantially longer than I have. They agreed with me that it is improper and inappropriate for the Government to try to do that by way of regulations. I am sure that the Minister would agree that the Government would not want to do anything that could be perceived as improper or inappropriate. 
 We ask the Government to support our amendment by deleting the provisions and insist that the objectives covered by paragraphs 2(d) to (g) should be pursued in primary legislation. In the regrettable case that the Government are not minded to agree, will the Under-Secretary explain why it seems to him proper to achieve those ends by regulation, preventing right hon. and hon. Members from scrutinising such changes as amendments to enactments or the conferring of jurisdiction on a court or a function on the Secretary of State? That would appear to be a slightly disdainful gesture towards the House.

David Jamieson: The amendment could have substantial effects, so it is proper to deal with each of point in the amendment.
 Clause 100 and schedule 6 are intended to give the necessary powers to implement the new convention concerning international carriage by rail. I am sure that hon. Members will have noted that clause 100(1) expressly limits regulation-making powers solely to the purpose of giving effect to the new convention text. Regulations may not be made for any other purpose. 
 Each of the specific powers that the amendment would remove is necessary to give full effect to the convention in United Kingdom law, so that the United Kingdom can comply with its international obligations. Without those powers, which, as I said, are limited to the purpose of giving effect to the convention in the United Kingdom, the domestic implementation of the convention would be frustrated. Importantly, Parliament will have the opportunity to scrutinise the Government's intended use of the regulation-making powers through the affirmative procedure. 
 The amendment would remove four powers set out in paragraphs 2(d) to (g), which could be used in regulations giving effect to the new convention, so I shall explain the need for each of them. Subparagraphs (d) and (e) enable regulations to amend an enactment and to apply, disapply or modify the effect of an enactment. It is important that it should be possible to amend any United Kingdom, Scottish, Welsh or Northern Irish legislation that is incompatible with the United Kingdom's obligation to give effect to the convention. Paragraph 2(d) will permit that. 
 The power in paragraph 2(e) would enable the United Kingdom to give effect to aspects of the convention by the most expedient means. That could be by modifying existing statutory provisions or by applying them in the context of the convention. In some cases that will be far more efficient than drafting completely new provisions that largely repeat existing legislation. An example would be the implementation of the new appendices F and G to the convention, on the validation of technical standards for railway material and technical admission of such railway material into international traffic. The most efficient way of giving effect to those appendices would probably be to modify or apply existing regulatory provision such as the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994, the Railways (Interoperability) (High-Speed) Regulations 2002, and the enforcement provisions of the Health and Safety at Work, etc. Act 1974. 
 Paragraph 2(f) enables regulations to confer jurisdiction on a court. Establishing a proper means of enforcing the provisions of the convention is an essential part of giving effect to it. Rail industry parties and customers will have rights and obligations under the convention and it will be necessary for the regulations to specify in which circumstances the provisions of the new convention can be enforced in a UK court and which court is to deal with such matters. One example would be where a contract 
 between a train operator and a third party—for example, a vehicle owner, a passenger or freight customer or an infrastructure manager—had been entered into in the UK, and the terms of that contract fell under the requirements of the convention. If the terms of that agreement were breached by one party, the convention would require the UK to ensure that it provided for the parties to take the matter to court, should they not be able to resolve the matter between themselves. Paragraph 2(f) will allow our regulations to make such provision.

Anne McIntosh: I might be missing something, but my understanding is that every contract of that nature specifies the law by which it is governed, and, in most circumstances, that is English law. Is the Minister saying that paragraph 2(f) would overrule whatever law the parties agreed should apply to their contract? Any contract must state to which jurisdiction and law the parties wish to submit themselves in the event of a dispute, and there are many disputes relating to contracts. Is he saying that such a provision of contract law would be overridden by paragraph 2(f)?

David Jamieson: I did not say that it would override contract law. It will specify in what circumstances the provisions of the new convention can be enforced in a UK court, and which court is to deal with the matter.
 Paragraph 2(g) enables regulations to confer functions on the Secretary of State or a person appointed in accordance with the regulations. That power is necessary, in particular, to enable the regulations to specify the authority competent to grant technical admission to rolling stock in the UK, as required by article 5 of appendix G to the new convention, in addition to the making of applications by the UK for the validation of technical standards and prescriptions under articles 5 and 6 of appendix F. It will also allow the Health and Safety Executive to be designated, if appropriate, as the enforcement authority for aspects of the new convention, in particular, for its provisions relating to the technical standards and technical acceptance for rolling stock and infrastructure. The Health and Safety Executive already carries out several similar enforcement functions in the railways sector under the Health and Safety at Work, etc. Act 1974. 
 I hope that I have been able to satisfy the Committee that the powers set out in paragraphs 2(d) to (g) are necessary to give proper effect to the convention and that there will be adequate opportunity for Parliament to scrutinise the Government's use of the powers. On that basis, I hope that the hon. Lady will withdraw her amendment.

Anne McIntosh: That clarification was welcome, if not completely clear. Paragraph 2(f) has not been explained to my satisfaction. I would have thought that any contracting parties would set out which law applied to their contract, and I am slightly concerned if that is to be overridden by the schedule.

David Jamieson: I assure the hon. Lady that English law would still be applied. Paragraph 2(f) could not be used to overrule the law. It just says that provisions may require the parties to go to the UK court on a COTIF dispute.

Anne McIntosh: That minor clarification is helpful. These matters are, perhaps, more complex than they first appeared. We will keep the matter under review and might return to it at a later stage. Meanwhile, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That this schedule be the sixth schedule to the Bill.

Anne McIntosh: We are told by the explanatory notes that clause 100 provides the Secretary of State with the power to make regulations to give effect to the new COTIF, and that such regulations must be approved by both Houses of Parliament. The schedule details the provisions that may be included in regulations made under clause 100. Some railways legislation on matters addressed in the new COTIF is already made at EU level. In those areas, the European Community has the right to act in place of the EU member states in international railway matters.
 We are led to believe that, in order to recognise that, some aspects of the new COTIF remain the responsibility of the UK, while others are the responsibility of the European Union. The regulations under clause 100 will be made partly under the powers of this Bill, and partly under section 2 of the European Communities Act 1972. That could lead to confusion. We are also told that it is not expected that the implementation of COTIF under UK law will require any significant additional public expenditure or additional public manpower. However, we heard during our little debate on amendment No. 52 that it will create a substantial amount of work. That work could be already going on. It could be work done by dedicated individuals under the current COTIF. 
 Can the Minister tell us whether the regulations and the schedule will relate to a broader, more wide-ranging power? Many of my right hon. and hon. Friends would argue that enabling regulations to be drafted under clause 100(1) or section 2 of the European Communities Act 1972, as specified in the schedule, would be an open sesame to a plethora of additional regulations, statutory instruments and Orders in Council. It would be helpful if the Minister could tell us which courts and tribunals currently rule in that regard in the United Kingdom. He mentioned that paragraph 2(f) would enable jurisdiction to be conferred on a UK court. Which courts and tribunals fall into that category? 
 We are enthusiastically in favour of the interoperability provisions. The channel tunnel was a monumental achievement under the Administration of Mrs. Thatcher.

Don Foster: If the hon. Lady is so enthusiastic about the interoperability directives, can she tell me—

Anne McIntosh: I did not refer to the directive.

Don Foster: If the hon. Lady is so keen on the interoperability provisions, can she tell me whether she believes that the technical specifications for interoperability in relation to safety, which arise through the interoperability procedures, should have precedence over the various regulations in relation to safety on our railways provided in this country, or should we muddle along, trying to operate both side by side?

Anne McIntosh: I could, but I shall not, because that is not pertinent to this portion of the Bill.
 At the time of the Margaret Thatcher Government I was embarking on my political career as a humble advisor to the Conservatives in the European Parliament. I remember going along to the policy unit of No. 10, which is a place that I have not visited for five and a half years, for obvious reasons. It was interesting to be privy to the negotiations at that time on a project that was not initially conceived in the form mentioned—it could have been a flexi-link, a bridge, or a mix of a bridge and a tunnel. However, I believe that the channel tunnel will remain a sterling monument to interoperability from which many other projects will flow.

Richard Bacon: In commenting on my hon. Friend's point, I say that I am also enthusiastic about the sterling monument to interoperability that she talks about. In fact, in South Norfolk we speak of nothing else. However, more important than my great enthusiasm for the interoperability provisions is my concern about the plethora of regulations that might be forthcoming, to which my hon. Friend referred. Does that not show that William Shakespeare was right when he wrote, in ''Henry VI part 2'',
''The first thing we do, let's kill all the lawyers''?

Anne McIntosh: I would not say that, as a non-practising member of the Faculty of Advocates, but it is good to know where one's friends are.
 On the point that my hon. Friend the Member for South Norfolk (Mr. Bacon) raised in support of my comments about open sesame and the plethora of regulations that will appear, we are concerned about the scope for 
''transitional, supplemental or incidental provision.''
 I hope that the Under-Secretary will put our minds at rest, that there have not been such provisions under COTIF, which was introduced during a transitional period, and that there would be no great need for such provision, because that would be very difficult indeed. 
 The Under-Secretary mentioned the validation of a technical standard, which is referred to in sub-paragraph (3) of paragraph 3. I would imagine that much of COTIF's work refers to the validation of a technical standard and the adoption of a uniform technical prescription. The Minister's Department will have its work cut out, because our gauges are still in large part different from the gauges used in continental Europe. What scope is there in the schedule and COTIF for such possibilities—one hesitates to use the word ''harmonisation'' because no one uses that term anyone, and I gather that the word is ''toning''? Is there a desire to proceed on that? 
 I am reminded of the fact that Eurotunnel and Eurostar facilities are now operating through the channel tunnel. We were promised direct regional services from the north of England and Scotland, in particular from Edinburgh, Newcastle and York. The east coast main line serves the Vale of York and would have been of special interest to me and to those whom I represent in that respect. Such services would have been very welcome indeed, and it is sad that those projects seem to have failed. It would be helpful to know whether the provisions in subparagraph (3) of paragraph 3 were inspired with that ambition in mind. 
 Paragraph 6 says: 
''Regulations may provide a criminal or other sanction in connection with a duty arising under the Convention or the regulations.''
 However, that offence would not be ''punishable with imprisonment'', nor would it be 
''punishable on summary conviction with a fine exceeding the statutory maximum or level 5 on the standard scale.''
 I jolly well hope not. The whole Committee would agree that it is extremely important that such sanctions should be considered in primary legislation. Why was it not deemed appropriate to set out the sanctions in the Bill? Can the Minister tell us what the sanctions under the present COTIF are? Will the Minister explain the regulations to make provision to prevent double recovery? Are they in existing legislation or are they new provisions? 
 I am deeply concerned to see that international law, on matters which one always assumed to be the province of domestic law, has, through the treaties of Nice, Amsterdam and Maastricht, crept into Community competence. I hope that the Minister will put the Committee's mind at rest that judgments will be enforced in the usual way by UK courts free from the interference of the European Court of Justice and its interpretations. Even though I have the highest regard for those who serve on the European Court, and in particular for Judge David Edward and Judge Nicholas Forwood, transport is a matter for our own courts to determine. I wonder whether, without wishing to cause too much excitement among Conservative members, there is any scope at all for interpretation by the European Court of Justice.

Richard Bacon: As it happens, I visit the European Court of Justice next week. Is there any message that my hon. Friend would like me to carry to it? Perhaps something along the lines of ''Get back in your box''?

Anne McIntosh: I regret that I will not be able to join my hon. Friend on that visit, as the Committee will still be meeting next week.
 Will the Minister take this opportunity to rule out any jurisdiction by the European Court of Justice and assure us that transport will remain a matter for our courts?

David Jamieson: Clause 100 and its associated schedule 6 provide the powers to enable the new version of the international rail convention—COTIF—to be incorporated into domestic UK law. We expect the new text to come into force late in 2004.
 The present version of the convention is incorporated through the International Transport Conventions Act 1983. That Act is not sufficiently flexible to deal with the new COTIF.
 Paragraph 1 of the schedule provides, with clause 100, that regulations may be made only to give effect to the new convention. Paragraph 2 provides the detail of the power, extent, scope and circumstances in which regulations under clause 100 may be made in order for the convention to be given effect. Paragraphs 3 and 4 provide for regulations to cater for changes to the convention and for most of those changes to flow directly into UK law. 
 That deals with technical changes to the uniform rules made by committee processes under the convention and which come into force automatically unless a member state objects within four months. Such changes include the drawing up of the list of uniform technical rules and prescriptions to be used for rolling stock and infrastructure under the adoption of uniform technical prescriptions appendix and changes to that list. These will need to come into effect in UK law automatically. We intend that more substantial modifications that are made by the general assembly of COTIF should first be approved by Parliament. To clarify the matter for the hon. Lady, all regulations made by virtue of this clause and schedule will be made under the affirmative procedure. 
 The hon. Member for Vale of York asked which courts would have jurisdiction in this country. The county court and, if appropriate, the High Court will have jurisdiction. As such, any cases will be a matter for United Kingdom reports. She asked about extra costs and regulatory burdens. A convention is already in force, and we do not anticipate any extra costs for industry. 
 There was a question as to whether there will be a plethora of regulations. I can give an assurance that there will only one set of regulations, not a plethora, as suggested by the hon. Member for South Norfolk. 
 The purpose of the transitional provision about which the hon. Member for Vale of York asked is to allow the switch from the current domestic implementation to the new domestic implementation to go smoothly. She also mentioned the validation of technical standards. The technical standards put forward for validation reflect both European specifications and UK national standards. Both reflect the particular requirements of the British network.

Don Foster: The Under-Secretary suggests that the TSIs and industry standards in the UK are appropriate and reflect the needs of our network. Does he accept that we have still not had a clear answer as to who is responsible for adjudicating on issues of conflict between the two? Was he rather surprised when the hon. Member for Vale of York, in answer to my intervention, said that she knew the answer to that question but was not going give it? At our meeting on 11 February, she told the Committee that if she knew the answer to that question, she would
 be in Government. Clearly, now that she knows that answer, she aspires to move forward.

David Jamieson: I am not sure whether I am answering a question to which. the hon. Member for Vale of York already knows the answer. European law clearly sets out when national standards or TSIs apply. I hope that that helps the hon. Gentleman.
 The hon. Lady asked me about double recovery, saying that the provisions are the same as the existing 1980 convention.

Anne McIntosh: Before we leave the point on TSIs to which the hon. Member for Bath dragged us back, one hesitates to usurp the role of Government. Therefore, one would wish that the Minister would respond to the question. He said that European law sets the standards that apply, but who would decide? Would one have to apply to a UK court?
 There was also mention of a tribunal. The Minister said that only a county court or the High Court would have jurisdiction. Which tribunal, if any, would have that authority? Who would decide what the applicable EU law was?

David Jamieson: That is an interesting question, on which, I am sure that inspiration will come to me at any moment.
 The hon. Lady asked about sanctions under the existing COTIF. The convention does not make provisions that require such sanctions, but the new COTIF does. She also asked about enforcement of judgments. The European Court of Justice is relevant in the enforcement of COTIF, because the sanctions will be the same as at present. 
 Some inspiration has arrived. European law is included into UK law, and UK law will enforce the implementation of the regulations.

Anne McIntosh: The question is who decides. Clearly, there is either national provision or an EU standard. As I said, if I knew the answer I would be in Government; but I am not in Government so I do not feel that I should give the Committee the answer and possibly be accused of misleading it. It is a simple question. The Liberals are often accused of being muddled in their thinking, but today the hon. Member for Bath has been uncharacteristically precise in his questioning. I repeat the question: who will decide whether it is a European or a national standard?
 While the Under-Secretary seeks inspiration, I am interested to note that paragraph 5 might require the attendance of a constable. I presume that costs might be related to that. One wonders in what circumstances the provision might be used.

David Jamieson: I shall clarify the point, if I may. The UK courts will take a view, but the European law—the directive—is implemented in the UK through domestic regulation.
 Question put and agreed to. 
 Schedule 6 agreed to.

Clause 101 - Office of Rail Regulation: general duties

Question proposed, That the clause stand part of the Bill.

Anne McIntosh: I seek clarification as to the precise role of the new Office of Rail Regulation. I presume that the rail regulator will have been involved with the present COTIF, and that he will be working with the European Union to set the standards for the COTIF regulations that we hear will be forthcoming under part 6. It would be timely to have some clarification of what will be the duties and responsibilities of the Office of Rail Regulation, as it is by no means clear.

David Jamieson: This little clause is consequential upon the creation of the Strategic Rail Authority under the Transport Act 2000. The amendment made by clause 101 will ensure that the Office of Rail Regulation has regard to the financial position of the Strategic Rail Authority for all of its duties, rather than concentrating on franchising alone. It is clearly correct that the Office of Rail Regulation should do that. The rail regulator has precisely the same duties.
 Question put and agreed to. 
 Clause 101 ordered to stand part of the Bill.

Clause 102 - Railways safety levy

Don Foster: I beg to move amendment No. 94, in
clause 102, page 44, line 13, at end insert— 
 '(2A) The Executive is required to consult with all relevant parties with regard to the proposed budget for activity referred to in subsection (2).'.
 As we draw towards the end of the Committee stage, we all seek to learn something. I have certainly learned a great deal from the performance of the hon. Member for Vale of York. With your permission, Mr. Benton, I have decided to try a little experiment; I shall try to move the amendment in the style of the hon. Lady. 
 For the delectation of the Committee, we are reminded that clause 102(1) inserts new section 43A in the Health and Safety at Work, etc. Act 1974, giving the Secretary of State power to make regulations to introduce a compulsory railway safety levy on the railway industry. The HSC will be able to propose such regulations to the Secretary of State after consultation. The clause extends to England, Scotland and Wales. Under that Act, the Health and Safety Executive is responsible for a range of regulatory work, including inspection activities, applied to the rail industry. Since October 1999, there has been a charge on the work on an hourly basis. Since October 1999, there has been an hourly charge for the work. Such charges cover only part of the cost of the HSE's work on railway safety. For example, they do not cover work relating to policy making or operational activities. The HSE annual report on railway safety listed those activities, for which charges were made.

Anne McIntosh: Is it appropriate for the hon. Gentleman to introduce a clause stand part debate when we are discussing an amendment?

Joe Benton: Until now, no reference has been made to a clause stand part debate. The hon. Gentleman has dealt with the amendment.

Don Foster: Thank you, Mr. Benton. I am setting the scene for the current arrangements. We will then move on to how the Government propose to change the levy and why those proposals need to be changed along the lines of the amendment. The HSE annual report on railway safety listed the activities for which charges were made. It referred to approval of specific proposals by operators and suppliers, safety case acceptance that Her Majesty's rail inspectorate has a duty to accept, safety case exemptions in certain circumstances and safety case acceptances arising from field operations.
 Ministers agreed that the impact of charging would be reviewed after two years. The HSE's annual report on the safety record of the railways in Great Britain during 2001 and 2002 says at paragraph 1.31 on page 8 that, because of concerns about the introduction of charging in Her Majesty's rail inspectorate and other HSE directorates, Ministers invited the HSE to review each new charging scheme after two years of operation. In June 2001, the HSE commissioned independent consultants, Deloitte and Touche, to review each of the four charging schemes operated by the HSE for administrative efficiency, the reasonableness of charge rates and the effectiveness of the queries and disputes procedure. HMRI is currently evaluating Deloitte and Touche's report, which it received in the spring of 2002. Sadly, the outcome of that review has not been made public, but the explanatory notes to the Bill state: 
''The review revealed that the existing charging regime was seen as bureaucratic, and stakeholders could not easily budget for charges.''
 I am sure that the Committee will want to know what caused people to be concerned about the proposal. I am extremely grateful to several trade unions for providing me with some examples of the charging regime that people have been worried about.

David Cairns: Will the hon. Gentleman give way?

Don Foster: I shall be delighted to give way to the hon. Gentleman, who made such a fine speech in Westminster Hall yesterday when he attacked the Catholic church.

David Cairns: In your presence, Mr. Benton, I shall not respond to the hon. Gentleman's last remark. I was not attacking anyone.
 Given that the hon. Gentleman has just paid glowing tributes to the positive engagement of trade unions, I think that he has departed from arguing in the style of the hon. Member for Vale of York.

Don Foster: The hon. Gentleman is right. I have made a slight departure from the hon. Lady's style. Nevertheless, the advice that I have received has been extremely helpful. It is worth bearing in mind that the
 charges that are currently made by the HSE, which will be revised under the levy that is proposed in the clause and which I want to amend, are on an actual basis the recovery of full costs and the time spent by the HSE for conducting a relevant activity for a duty holder on a particular occasion.
 The Committee will be fascinated to know that, from 20 October 2001, the charge out rate has been £130 per inspector hour. There exists, however, widespread consensus in the industry that the present system is unsatisfactory. Among the views of the membership of various trade unions about its introduction, it was said that there is less likelihood of the railway group company contacting the inspectorate and seeking advice and constructive discussions at £130 an hour. At meetings with the HMRI, people are always conscious of the meter running. Form filling and bureaucracy distract HMRI inspectors. The HSE charging officers failed to issue a 100 per cent. accurate invoice and that has necessitated queries and is time-consuming. 
 It is pointed out that the SRA effectively pays the charge anyway, as the train operating companies factor in the hourly rate in their franchise negotiations with it. The charging system has necessitated the introduction of a monitoring and tracking system for invoices, which is an extra cost and distraction. It is interesting to note that in 2001–02 the Health and Safety Executive costs for enforcement of railway safety legislation were £6,240,000. Yet it received only £5,251,000 in income, which leaves, the Committee will have worked out, a deficit of £411,000. 
 With all those concerns to consider, the Government, after consultation through the Health and Safety Executive—the review not being made public—decided to present the current proposal. We understand that regulations to require the payment of a levy need primary legislation, because levies cannot be imposed under regulations made under section 43(2) of the Health and Safety at Work, etc. Act 1974, which provides vires for the existing charging regime. We now have a proposal for a levy system. 
 Many people—increasingly, I feel like one of them—wonder why we need any complex system, and why the Government could not simply pay directly for the costs incurred by the Health and Safety Executive in the relevant work. After all, even the proposed levy system will be paid for from the taxpayers' pocket. The train operating companies who will pay the levy will in the end raise their charges; either the travelling public will pay or the money will come through the SRA contribution to the train operating companies, which, again, comes from the taxpayers' purse. There are questions to be answered about whether even a levy is a sensible approach. 
 However, because I am a magnanimous man and because I knew that the Committee would listen to erudite arguments from the Minister explaining why a levy is better than a direct grant, I decided to table a small amendment to improve the Government's proposals. As the Committee will know, the 
 amendment would insert into the clause the following provision: 
''The Executive''—
 that is the Health and Safety Executive, for anyone who is still with us— 
''is required to consult with all relevant parties with regard to the proposed budget for activity referred to in subsection (2).''
 In case anyone is lost, subsection (2) of course refers to 
''activity undertaken by the Executive in reliance on section 117 of the Railways Act 1993 . . . or . . . activity undertaken by the Executive, under or by virtue of any other enactment, in relation to a transport system to which that section applies.''
 The amendment—this is going on for some time and the Under-Secretary is beginning to look worried—would mean that the budget for the work done by the Health and Safety Executive, which will form the basis for calculating the levy, would have to be discussed with all those affected by the levy. It strikes me that those who pay for the work should have the opportunity to scrutinise the executive's budget.

Anne McIntosh: I have been paid a great compliment. They always say that imitation is the greatest form of flattery, but I do not think that the hon. Gentleman came close. Our response, like the Liberal Democrat response to some of our amendments, is that we should like to support the amendment in principle, but whether we shall do so depends on where in the country we live.
 I have some general points to make on clause stand part about why the safety levy is probably not the best way to proceed. The hon. Gentleman seems to have proved that his amendment is a probing one, since he does not seem to have carried the Committee with him.

Don Foster: The hon. Lady is well aware that if I am desperate to get an amendment through, I simply use the time-honoured formulation—she knows which one I mean.

Anne McIntosh: If the amendment were to fail, which I am sure would be a source of great disappointment to the hon. Gentleman, whom would the Health and Safety Executive be required to consult? I imagine that the purpose of the amendment is to find out who will set the budget and what the budget will be.

David Jamieson: I was interested to listen and watch the hon. Member for Bath speaking in the style of the hon. Member for Vale of York. He did a good job, having obviously been closely observant during the hours that we have spent in Committee so far. Alas, I am not going to speak in the style of the hon. Lady since I shall speak only to the amendment and get to the point.
 I believe that the intention behind amendment No. 94 is to impose a legal obligation on the HSE to consult all relevant parties before setting the detail of the railway safety levy. Clause 102 is an amendment to the Health and Safety at Work, etc. Act 1974. That Act already requires the HSE to consult on regulations that it wishes to propose to Ministers. The legal requirement to consult would also apply to regulations imposing a rail safety levy, so the HSE will have to 
 consult all relevant parties. I hope that that answers the hon. Lady's point. I am not really sure what is meant by the reference in the amendment to budget activity, but I am sure that the hon. Member for Bath will appreciate that the setting of detailed budget allocation is not a matter for consultation. 
 Under the existing hourly charging regime, the HSE has established charging review groups, including one for railways. Their role is to act as a consultative forum on charging issues. For example, they comment on proposed increases of fees and the quality of invoices and they also take an interest in such matters as efficiency savings. I anticipate that the HSE will establish a similar consultative forum if the current charging regime is replaced by a levy. 
 The hon. Gentleman alluded to the issue of whether it is right for the HSE to charge for its work. Charging for certain of the HSE's activities in various industries, including the railway industry, was introduced by the Government in 1999. In the Government's view, it was right that those whose activities caused safety risks should bear much of the cost of their regulation. The levy will establish a more efficient and less bureaucratic mechanism than the existing charging regime and allow the HSE to recover some of its operational cost from the railway industry. Although the hon. Gentleman's amendment suggests a change in drafting, it does not alter the effect of the provision in relation to consultation on proposed regulations and I, therefore, invite him to withdraw it.

Don Foster: I am grateful to the Minister for his response. He tells me that all is well because the Health and Safety at Work Act, etc. 1974 requires the HSE to consult on regulations, but, slightly earlier, he said that he did not understand what was meant by the reference in the amendment to ''proposed budget for activity.'' I am unsure how he marries the two positions.
 The issue is simple and, no doubt, I could have put it much more succinctly. Those people who are required to pay the levy should be consulted on the budget that will determine its magnitude. If the Minister can assure me that the requirements to consult under the 1974 Act include consultation on those aspects of the budget of the Health and Safety Executive or the Health and Safety Commission in relation to the work that this Bill covers, I will be happy to withdraw the amendment. However, I am still waiting for a clear assurance from the Minister that these issues are covered.

David Jamieson: Those will be matters for the charging review groups to address.

Don Foster: I am unsure whether that was the assurance that we sought. However, we can have further discussions to seek absolute clarity on that before we move on to further stages of the Bill.

David Jamieson: They will also be consulted on the overall level of charges. Is that of any help to the hon. Gentleman?

Don Foster: That is enormously helpful. Having at long last received that clear assurance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Jamieson: I beg to move amendment No. 82, in
clause 102, page 45, line 11, leave out from 'information)' to end of line 13 and insert 
 'after ''27A above'' insert '', by virtue of section 43A(6) below''.'.
 This is a technical amendment, which is intended to ensure that information obtained for the purposes of the railway safety levy is subject to the provisions relating to relevant information in section 28 of the 1974 Act. Section 28(1) defines ''relevant information'' as information that is obtained by or furnished to any person under certain provisions of the Act or health and safety regulations. This amendment will ensure that information provided to the HSE for the purposes of the railway safety levy, which could be commercially sensitive, for example, will be subject to the same restrictions on disclosure as other relevant information obtained by the HSE during its work. 
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Anne McIntosh: A charge for work done by the HSE under the relevant Act has operated since October 1999. It has been charged for on an hourly basis, and it has proved to be uniformly unpopular. The Government have had the benefit of a review, and the production of the provisions that they are now proposing gave them an opportunity to come up with a system that is more popular. It appears that the industry would wish the charge to be a straight grant in aid.
 I imagine that it is the view not only of the unions, which seems to have caught the attention of the Liberal Democrats, but the entire industry—the employer organisations and the TOCs—that if there is a problem and if the system is universally unpopular, regrettably the railway safety levy is not the answer. In the view of many, the principle that lies at the heart of such a scheme is flawed. 
 Does the Minister not agree that if the system had been funded by a direct Government grant it would have been easier to administer, more efficient and more effective, and that there would have been fewer transaction costs and less bureaucratic hierarchy? Will he take this opportunity to confirm that the Government received extremely adverse comments about their review from the train-operating companies, the unions and others, as the hon. Member for Bath noted. Those results were not made public. It appears that the Government put on to their website only comments that are supportive of any consultation or review that they have conducted. The Committee can now conclude that when the results of such a review or consultation are not as flattering and helpful as the Government would like, they are not published for the public to see. 
 Everybody accepts that the HSE has to be paid. However, it appears that the following view has broad support at every level of the industry: the HSE needs 
 more direct funding, not schemes that many believe would cost the taxpayer more by creating a larger and less transparent bureaucracy that had greater administrative costs. It is incumbent on the Government to listen to the worries that have been forcefully put across by the industry—the TOCs, the employers, unions and employees—rather than introducing a new system that is less popular than that introduced in 1999.

Kelvin Hopkins: I am surprised that the hon. Lady suggests direct Government funding for anything, because one does not expect that from the Conservative party. There is a view, especially among trade unionists, that direct funding by Government would be preferable, although they accept that the levy system is the second best option. The railway industry is heavily subsidised in general. Given that the money will come out of Government pockets in any case, although it will go round the houses to become a levy for the HSE, would it not be easier to use direct funding, which would save money that is trimmed because it passes through more hands? I wanted to register the trade union view that direct funding by the Government might be better than a levy system, although I would not support a radical change.

Don Foster: I share many of the hon. Gentleman's worries. May I pay tribute to the Transport Salaried Staffs' Association? It has put together commendable and detailed briefings on the issue and it makes a powerful case along the lines that the hon. Gentleman suggested.
 Sadly, you were not in the Chair when we discussed the funding of the British Transport police, Mr. Benton. At that time, I expressed concern that a complex funding mechanism was being proposed in the form of the police service agreements. I argued that direct funding would make more sense because that is how Home Office police forces are funded. In the same way, the clause would set up an unnecessary and cumbersome funding mechanism. As the hon. Gentleman and many trade unions have rightly pointed out, the money will come from the taxpayer anyway but it will be provided in a circuitous manner. 
 There is an additional argument, on which the Under-Secretary should reflect. If the funding regime uses either an hourly charge or the new levy system—I acknowledge that that is a better funding scheme than the hourly rate—there will be a relationship between the customer and the provider, which is my worry about the police force. We should examine the relationship between the regulated and the regulator. If there is a move away from clear direct funding of the regulator, which is the funding used for many other regulatory functions, there is conflict between the customer-provider relationship and the more appropriate regulated-regulator relationship.

David Jamieson: It has been the practice of the Health and Safety Executive since 1999 to charge the railway industry for its safety-related rail work. That is consistent with its practice when dealing with other industries that have similar requirements, such as the
 nuclear and offshore industries. At present, the HSE uses a system of hourly charges to charge for its safety-related railway work. That is inefficient and over-bureaucratic for both the HSE and the railway industry.
 Clause 102 will give the Secretary of State the power to make regulations to introduce a compulsory railway safety levy on the rail industry that would replace the hourly charging system. Subsection (1) does that by inserting new section 43A into the 1974 Act. The Health and Safety Commission will be able to propose such regulations to the Secretary of State after consultation. The new section specifies the purposes for which the railway safety levy can be applied and refers to the matters to be determined by regulations. 
 The regulations will cover the detail of the scope and application of the railway levy and will be subject to full public consultation, to answer the hon. Member for Vale of York. The optimum time for preparing and consulting on such regulations is being considered, but I can confirm that regulations will not be introduced before the Bill has received Royal Assent. We must get the detail as correct as possible before introducing any regulations. 
 I listened carefully to the points made by the hon. Member for Luton, North (Mr. Hopkins). We must embrace some of those arguments when the regulations are introduced. Clause 102(2) amends section 28(1)(a) of the 1974 Act, which relates to restrictions on the disclosure of information. As I said earlier, information provided in relation to the levy introduced by the clause will be subject to the provisions in that section. 
 The hon. Member for Vale of York mentioned the consultation. Nearly 50 responses were received and HSE officials reported back to the HSE on 14 January. The paper outlining the detail and a summary of the responses should soon be posted on the HSE website, but the HSE has also placed a copy in the House of Commons Library. In short, the responses were split roughly 50–50 between those in favour of the principle of the levy and those against. We will consider those views when we draft the regulations.

Anne McIntosh: I am grateful to the Under-Secretary for his explanations. The timing is regrettable: we are debating whether to empower the Government to insert a new provision into the 1974 Act, without having the time to review the consultation and its responses. If we are to do justice to the scrutiny of proposed new section 43A, the Committee should have more time. In saying that I simply rehearse arguments that were advanced in the responses by all sectors of the industry: it is not a party political point.
 The Under-Secretary wasted this opportunity to explain why the Government are rightly turning their back on the present hourly charging system, which is expensive to administer and inequitable. If everybody is united in condemning it, there must be something wrong with it. The Government had to act. The system had been in force for two or three years. There is sufficient evidence to show that it is expensive and inequitable. The Under-Secretary said that the 
 provision would introduce a new compulsory system and that the safety levy would be imposed on train-operating companies. 
 I say this in a purely dispassionate and apolitical way: we seem to suffer the highest rail fares of any European country, even in standard class, and there is a concern that the cost of imposing the safety levy will be passed on to passengers. The Under-Secretary has lost the opportunity to explain to the Committee why this system was chosen. It is arguably the most bureaucratic to administer and it will increase the cost of travelling by rail at a time when the industry would argue that the sectors with which they are trying to compete—air and sea travel—will not have to face similar costs. I regret that the Under-Secretary did not use this opportunity fruitfully to argue that this is the 
 best way forward. I am not persuaded that it is the best way. 
 Question put and agreed to. 
 Clause 102, as amended, ordered to stand part of the Bill.

Joan Ryan: On a point of order, Mr. Benton. On behalf of the Committee, may I say that we have been fortunate to have the benefit of your guidance this afternoon and the pleasure of your company at very short notice? We are grateful for that.
 Further consideration adjourned.—[Joan Ryan.] 
 Adjourned accordingly at half-past Four o'clock till Tuesday 11 March at five minutes to Nine o'clock.